Immigration and family law are two completely separate areas of law that are occasionally intertwined. Unfortunately for many immigrants, the potential immigration implications of a family law issue are often overlooked. As a result, it is extremely important to be aware of any immigration implications when handling a family matter. This article will discuss the immigration implications that stem from divorce.
The most common family related issue that immigration lawyers deal with is divorce. When an individual gains immigration benefits as a result of marriage, the dissolution of that marriage can cause the termination of the individual’s immigration benefits.
Divorce, in the immigration arena, usually happens during one of three phases: applying for adjustment of status to gain permanent residency, applying for removal of conditions to become a full green card holder, or applying for naturalization to become a citizen. If an individual gains immigration benefits as a result of marriage, but gets divorced at any of the above mentioned phases, their immigration status may be jeopardized.
At Green Card Stage
When two people get married and one applies for a green card based on that marriage, the key determination United States Citizenship and Immigration Services (USCIS) makes is whether the parties intended to establish a life together at the time of their marriage. If the couple can prove they intended to establish a life together at the time of their marriage, they can typically overcome any immigration hurdle or accusation of a sham marriage.
If, however, the couple gets divorced before the applicant receives their green card, the applicant will have difficulty proving that the relationship was entered into in good faith. Without an accompanying spouse at the green card interview, the applicant will have to provide a tremendous amount of supporting documentation to prove the relationship was legitimate, including co-habitation, co-mingling of funds, joint bank accounts, pictures, insurance policies, etc…
The Board of Immigration Appeals has held, however, that an adjustment of status application may not be denied solely because the marriage is no longer viable and the parties are not living together if it was not fraudulent or a sham marriage at its inception and the parties are not legally separated or divorced. In order to deny an individual a green card on the basis of a marriage, USCIS will have to demonstrate evidence that the marriage was fraudulent or a sham marriage, or evidence showing the couple was divorced or legally separated at the time the adjustment of status application was filed.
At Conditional Residence Stage
When an individual is approved for permanent residency based on marriage, they are issued a conditional green card (assuming the couple files within 2 years of marriage). A conditional green card provides the same rights that a full green card provides (employment, travel, etc…), however the conditional green card holder must apply to have the conditions removed within 90 days of the two year anniversary of having received the conditional green card. At that time, the conditional green card holder will have to demonstrate that the marriage is still valid.
Often times, however, a couple will get divorced while the individual is in conditional resident status. When this happens, the individual may still apply to have their condition removed as long as they prove they entered the marriage in good faith by establishing the legitimacy of the marriage through various supporting documentation.
The applicant should show the couple co-habitated together (lease agreements), co-mingled funds (bank and credit card statements), filed joint tax returns, joint utility bills, took out life insurance policies for one another, and have photographs together from vacations or other activities. The clearest proof of a good faith marriage, however, is sharing a child together. If a couple has a child together, but later gets divorced, it is extraordinarily unlikely that USCIS will determine the marriage was not entered into in good faith. Having a child together will almost certainly erase all doubt of the legitimacy of a marriage.
At Naturalization Stage
An individual who has a green card based on marriage has the right to apply for naturalization 90 days before the 3 year anniversary of the issuance of their green card. This is in contrast to all other green card holders who must wait 90 days before the 5 year anniversary of their green card before they can apply for citizenship. If the applicant and their spouse divorce prior to the applicant filing for naturalization, the applicant will no longer be eligible to apply for naturalization after 3 years of valid green card status and must wait the 5 years.
Divorce is never easy on the wife, husband, their families, and especially any children who may be involved. It can be even more problematic for an individual who gained an immigration benefit based on marriage. As a result, it is critically important to know the immigration implications of filing for divorce if you or your spouse has benefited from immigration laws designed to unite and sustain families.
Disclaimer: This article is not meant as specific advice regarding a person’s individual case. An attorney should be consulted. This article does not create an Attorney-Client relationship.